Doctrine of res ipsa loquitur in cases of medical negligence

Res ipsa loquitur


In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred.

The principle has been explained in the case of Scott v. London & St. Katherine Docks Co. reported in (1865) 3 H & C. 596, by Chief Justice Erle in the following manner:

…where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:

• “Where a patient sustained a burn from a high frequency electrical current used for “electric coagulation” of the blood [See Clarke v. Warboys The Times, March 18, 1952, CA];

• Where gangrene developed in the claimant’s arm following an intramuscular injection [See Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42];

• When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady v. Tenderenda (1974) 51 D.L.R. (3d) 79, SCC;

• Where the defendant failed to diagnose a known complication of surgery on the patient’s hand for Paget’s disease[See Rietz v. Bruser (No. 2) (1979) 1 W.W.R. 31, Man QB.];

• Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin [See Bull v. Devon Area Health Authority (1989), (1993) 4 Med. L.R. 117 at 131.];

• Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes [See Coyne v. Wigan Health Authority (1991) 2 Med. L.R. 301, QBD];

• Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [See Lindsey v. Mid-Western Health Board (1993) 2 I.R. 147 at 181];

• When a needle broke in the patient’s buttock while he was being given an injection [See Brazier v. Ministry of Defence (1965) 1 Ll. Law Rep. 26 at 30];

• Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [See Roe v. Minister of Health (1954) 2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority (1982) 1 All E.R. 650];

• Where an infection following surgery in a “well-staffed and modern hospital” remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682]; and

• Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester (1956) 1 D.L.R. (2d) 502].

In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

Refer: V. Kishan Rao Versus  Nikhil Super Speciality Hospital and Another [JT 2010 (4) SC 630 : (2010) 4 SCALE 662 : (2010) 5 SCC 513]

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